Decision No. R99-345

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO

DOCKET NO. 98A-501CP

in the matter of the application of terry t. walker, d/b/a care van, p.o. box 369, trinidad, colorado 81082.

recommended decision of
administrative law judge
arthur g. staliwe

Mailed Date: April 5, 1999

Appearances:
Robert R. Walker, Trinidad, Colorado, for Terry T. Walker;
Rodney L. Gabaldon, Esq., Albuquerque, New Mexico, on behalf of Saferide Services, Inc.; and
Florence M. Barajas, Trinidad, pro se.

I.  statement of the case

  1. By application filed November 3, 1998, Terry T. Walker requests authority from this Commission to operate as a common carrier for the transportation of passengers in call-and-demand limousine service between all points in the counties of LasAnimas and Huerfano, Colorado. On November 9, 1998, the Commission sent notice to all who might desire to protest, object, or intervene.
  2. On November 18, 1998, Daniel Andjelkovich, doing busi-ness as Walsenburg Taxi Company, intervened. Previously, on November 16, 1998, Florence M. Barajas, doing business as Your Ride Taxi Service (“YRTS”) intervened. On December 7, 1998, Saferide Services, Inc. (“Saferide”), intervened.
  3. Pursuant to notice the matter came on for hearing on January 28, 1999 before Administrative Law Judge (“ALJ”) ArthurG. Staliwe. Pursuant to the provisions of § 40-6-109, C.R.S., ALJ Staliwe now transmits to the Commission the record and exhibits of said hearing, together with a written recom-mended decision containing findings of fact, conclusions, and order.

II.  findings of fact

  1. Based upon all the evidence of record, the following is found as fact:
  2. Although the nominal applicant in this matter is Terry T. Walker, a resident of Phoenix, Arizona, the active party in this application is Robert R. Walker, Terry’s brother, who resides in Trinidad, Colorado. It is Robert R. Walker who is operating the temporary authority already granted.
  3. Care Vans is engaged in the transportation of medical patients, primarily kidney dialysis patients, from points in Las Animas County to a kidney dialysis treatment center in Walsenburg, Huerfano County, 40 miles north along Interstate Highway 25. Care Vans currently operates one six-passenger mini-van, with plans to acquire a second in the future. Although denominated as a call-and-demand service, the record in this matter establishes that Care Van and intervenor Saferide both only operate one vehicle between fixed points (Trinidad to Walsenburg and return) over fixed routes (Inter-state Highway 25), with each vehicle making one departure in the early morning hours and a single return later in the day.
  4. Robert R. Walker is a former emergency medical technician with knowledge of diabetes, has first aid knowledge to include CPR training, and routinely carries hard candy on his vehicle for diabetics who might need it en route between Trinidad to Walsenburg. Regarding payment, Care Van will accept any medical insurance, be it Medicaid, United Mine Workers of America medical coverage, or any other plan. This is signifi-cant in the context of this application since the record estab-lishes that many of the passengers being transported are medi-cally disabled, and are not in a position to advance cash for transportation with the hope of later reimbursement by an insur-ance company.
  5. Before starting Care Van, Robert Walker worked for Saferide as a driver. During that time he drove a vehicle with two missing wheel lugs which Saferide kept on the road for two weeks after he reported the defects. It should be noted that under current Commission safety criteria, two missing lugs on a single vehicle having less than eight lugs per wheel would automatically put that vehicle out of service. Robert Walker concedes that from time to time he provided free transportation to medical patients on an emergency basis to get them to treat-ment when no other carrier could, or would, accept them.
  6. Felix Magana, Trinidad, is a victim of endstage renal failure who must travel three days a weeks from Trinidad to Walsenburg and return to undergo kidney dialysis. Mr. Magana used Saferide in the past, in March 1998, and found the service to be unreliable. Pertinently, Mr.Magana noted that Saferide employed 11 drivers in a 9-month period, the drivers were inex-perienced and had to be directed to their destination by the passengers, and on one occasion he was compelled to leave at 6:30 a.m. for a 10:45 a.m. appointment because that was the time Saferide’s vehicle was making its single trip northbound on I-25. Further, because of the advanced stage of Mr. Magana’s disease, he requires assistance from a companion in order to be able to travel from his house to the vehicle, and from the vehi-cle into the treatment center. Saferide would not accept Mr.Magana’s companion, at least not for one fare. Inquiry by Mr. Magana into the use of taxi service revealed that the $80 roundtrip cost was too expensive. At the time of inquiry YRTS was not a Medicaid certified carrier, thus requiring that the transportation be first paid out of pocket rather than by insur-ance.
  7. Tim Ferraro is Mr. Magana’s companion, who echoed Mr. Magana’s testimony and noted that on the one occasion he called to complain to Saferide in Las Vegas, New Mexico, he was unable to get a response. Regarding taxi service, Mr. Ferraro attempted to make reservations, but upon being quoted an $80 roundtrip cost, with no Medicaid billing by the taxi company, using YRTS was too expensive at that time.
  8. Both Mr. Magana and Mr. Ferraro support the application of Care Van, both for the medical skill of Robert R. Walker as principal driver, as well as the fact that Care Van will accept escorts who are assisting disabled passengers for a single fare.
  9. Arthur Roybal, Trinidad, attempted to obtain transportation services from Saferide for his aging mother who needs kidney dialysis three times a week. Mr. Roybal contacted the local driver and was informed that because his mother had United Mine Workers’ of America medical insurance, but not Medicaid, she was not eligible to travel on Saferide’s vehicle, at least not as a patient for whom the carrier would bill an insurance company. Accordingly, Mr. Roybal was compelled to transport his mother individually until the advent of Care Van transportation. For obvious reasons, Mr. Roybal supports the application of Care Van.
  10. Eugene Cortez, Trinidad, is a kidney dialysis patient who needs transportation from Trinidad to Walsenburg and return. A previous Saferide passenger, Mr. Cortez prefers to use the service of Care Van after Saferide’s service became erratic and he missed appointments. When Mr. Cortez had a problem with his Medicaid paperwork Saferide would not transport him until his Medicaid paperwork problem was taken care of, with the result that his sister had to transport him for a three-week period. Mr. Cortez called YRTS, but was informed that the taxi company was not billing Medicaid for patient travel at that time, and that he would have to pay directly for his transporta-tion.
  11. Fred Trujillo is a resident of Hoehne, seven miles to the north of Trinidad along Interstate Highway 25. Mr.Trujillo is a kidney dialysis patient who requires thrice weekly treatments in Walsenburg. In the past Mr. Trujillo has used Saferide, at times being picked up at 4:30 a.m., while on other occasions Saferide was so late that his grandson had to take him to the kidney dialysis center lest he miss his appoint-ment. Mr. Trujillo used Saferide from August to December 1998, noting that some drivers got lost en route, while others did not know where to go upon arrival in Walsenburg and had to be directed by the passengers. Mr. Trujillo prefers the service of Care Van, noting that Mr. Walker is knowledgeable at both orig-ination and destination points, and is medically aware so that he carries hard candy for his diabetic passengers. Mr.Trujillo has never called YRTS and was unaware that YRTS provides any-thing more than local taxi service in Trinidad.
  12. Robert Domina, Trinidad, is a kidney dialysis patient who requires thrice weekly transportation from Trinidad to Walsenburg and return. In the past Mr. Domina used the serv-ices of Saferide, some of it to Pueblo while kidney dialysis was provided there, noting that on one occasion he was required by Saferide to be ready early in the morning, only to have to go to Springfield, Colorado (in extreme southeastern Colorado, near the Oklahoma border), a 260-mile odyssey on return. He did not arrive home until 11:00 p.m., and was not able to have any food the entire day. On a second occasion, Saferide’s van ran out of gas as a result of a defective gas gauge just before arriving at his house. Mr. Domina and the other passengers already on the van were then picked up by YRTS, who was acting as an emergency replacement for Saferide. As with Mr. Ferraro, Mr. Domina had problems obtaining responses when calling Saferide in Las Vegas, New Mexico. Mr. Domina supports the application of Care Van as an alternative to Saferide.
  13. As an intervenor operating on temporary author-ity, Saferide presented the testimony of Ida White, Trinidad, who undergoes kidney dialysis at home, but must use Saferide once a month to go to medical facilities in Pueblo, Colorado. Unfortunately, Ms. White was not aware that in Docket No. 98A-343CP, Saferide’s application for permanent authority, it expressly abandoned its request to serve the City of Pueblo and a six-mile radius thereof upon stipulation with City Cab of Pueblo.
  14. Mr. Manual Cisneros, Las Vegas, New Mexico, is the regional manager of the Las Vegas division of Saferide, a subsidiary of Laidlaw Industries. Las Vegas, New Mexico is approximately 100 miles away from Trinidad, and is the central location for the 22-vehicle fleet Saferide uses to serve 15counties in both New Mexico and Colorado. Mr. Cisneros’ testimony establishes that Saferide performs between 75 and 95one way trips per day, although it is not clear whether that is 22 vehicles traveling four one way trips each, or the 22vehicles carrying four passengers each on one trip each outbound and a second trip inbound, etc.
  15. Mr. Cisneros’ testimony establishes that the Saferide van currently serving the Trinidad area is stationed in Weston, 21 miles to the west. The next closest vehicle is stationed in Raton, New Mexico, and that vehicle has its pas-sengers and route to serve; it is not standing by awaiting a call from Trinidad.
  16. Mr. Cisneros’ testimony establishes that Saferide will bill any insurance company for transportation, not just Medicaid, but he had no explanation for the contrary information given to some Trinidad passengers, nor was he able to refute the direct testimony of those like Mr. Roybal who were provided direct information to the contrary. Also unrebutted in the record is the testimony of vehicle breakdowns and driver igno-rance of pickup and destination points.
  17. Florence Barajas, doing business as Your Ride Taxi Service, is the local taxi provider in Trinidad. In addi-tion, Mrs. Barajas and her husband Joe have recently obtained additional authority extending north to Colorado Springs to pro-vide call-and-demand passenger service. YRTS has two mini-vans with which it provides service, driven by Florence and JoeBarajas. As pertinent to this application, Mrs. Barajas has also been recently certified as a Medicaid contractor for trans-portation services, thus allowing her to bill Medicaid directly. However, at the time of hearing she had yet to have her first passenger request service out of Trinidad, and YRTS’ only expe-rience in the area was the one trip made on an emergency basis for Saferide. Indeed, the testimony of Joe Barajas was to the effect that YRTS had an agreement with Saferide Services to act as its backup and YRTS planned to serve this market only when Saferide suffered breakdowns, whenever they might occur. The evidence in this docket is that YRTS is not actively soliciting medical patients needing inter-city transportation between Trinidad and Walsenburg, or elsewhere.

III.  discussion

  1. Here the applicant seeks authority to operate as a call-and-demand limousine common carrier of passengers and thus the doctrine of regulated monopoly applies. Rocky Mountain Airways, Inc. v. PUC, 181 Colo. 170, 509 P.2d 804 (1973). The applicant must prove by substantial and competent evidence that there is a public need for the proposed service, and if there are existing common carriers rendering service, the applicant must also prove that the existing passenger service is substan-tially inadequate. Ephraim Freightways, Inc. v. PUC, 151 Colo. 596, 380 P.2d 228 (1963); Denver and Rio Grande Western Rail-roads v. PUC, 142 Colo. 400, 351 P.2d 278 (1960). Existing service must be shown to be substantially inadequate, not just less than perfect, and occasional complaints arising from normal common carrier service will not suffice. RAM Broadcasting v. PUC, 702 P.2d 746 (Colo. 1985).
  2. Regarding public need, there is ample and compelling evidence of need for the transportation of patients from points in Las Animas County (Trinidad, Hoehne) to the kidney dialysis center in Walsenburg (Huerfano County), and return. By the same token, there is no evidence of need for the transportation of otherwise healthy individuals in conventional inter-city serv-ice. Nor is there evidence of need for local service point-to-point within either Las Animas or Huerfano Counties. This application poses no threat to local taxi service.
  3. Regarding incumbent carriers and their service, the evidence in this matter reveals that a significant number of kidney dialysis patients who previously used Saferide have opted to use Care Van, not because of price but because of real serv-ice deficiencies such as poorly maintained vehicles and lack of driver training. YRTS does not share in these problems, but with only two vehicles it may have problems fulfilling both its taxi role in Trinidad as well as providing multi-hour inter-city shuttle of passengers. This may be the reason it has not actively pursued this traffic up to the time of hearing.
  4. One Matter became apparent upon review of the evidence in this case: neither Care Van nor Saferide appear to offer true call-and-demand service. Only one vehicle operating over fixed routes (I-25) between fixed points (Trinidad-Walsenburg and return) at times dictated to the passenger is not service on-call as demanded and where demanded. The service actually provided by Care Van and Saferide partakes more of the nature of scheduled service than true call-and-demand.
  5. Over 50 years ago the Interstate Commerce Commission (“ICC”) was called upon to discuss the differences between scheduled and call-and-demand service in the context of freight hauling. The case is Brady Transfer & Storage Co., 47 M.C.C. 23 (1947), aff’d. Brady Transfer v. US, D.C. Iowa, 80 F. Supp. 110 (1948), wherein the ICC noted the following characteristics of scheduled service versus call-and-demand:

A. Predetermined plan – repetitive transportation from day to day or week to week inconsistent with true on-call, go-anywhere service.